A plaintiff can only examine witnesses listed under Order XVI Rule 1 CPC, and a defendant cannot be examined as a plaintiff's witness without sufficient cause and leave of the court.

JUDGMENT

Shree Chandrashekhar, J. - The petitioner, who is the plaintiff no. 4 in Title Suit No. 26 of 2005, is aggrieved of order dated 12.04.2017 by which objection of the defendant nos. 1 to 5 to examination of the defendant no. 6 as one of the plaintiffs'' witnesses has been allowed.

2. Plea urged on behalf of the petitioner is that there is no bar under the Code of Civil Procedure prohibiting a plaintiff to examine an adversary, may be a defendant, in the suit as one of his witnesses. Mr. Shailendra Kumar Tiwari, the learned counsel for the petitioner in support of this contention has relied on decisions in " Sri Awadh Kishore Singh and Another Vs. Sri Brij Bihari Singh and Others reported in , (1993) AIR Patna 122" and " M.C. Ananda and Another Vs. M.C. Chikkanna and Another reported in , (2001) AIR Karnataka 139" . Another contention raised on behalf of the petitioner is that once the trial Judge permitted examination of defendant no. 6 by a conditional order dated 02.03.2017 and examination-in-chief of the defendant no. 6 was filed by the plaintiffs, the court cannot decline the plaintiffs permission to examine the defendant no. 6 as one of their witnesses.

3. Title Suit No. 26 of 2005 has been instituted by the petitioner along with six other persons who are purchasers of the suit schedule properties. They have asserted that Jamuna Kunwar widow of late Bihari Ram had valid right, title and interest over the suit schedule properties and being Class-I legal heir of Kauleshwar Ram she has rightfully transferred the suit lands in favour of the plaintiffs. Initially the said Jamuna Kunwar was not made a party in the suit, however, through an application for amendment which was allowed on 22.03.2006 the said Jamuna Kunwar has been added as defendant no. 6. At this stage it needs to be recorded that the plaint does not disclose that the said Jamuna Kunwar is a proforma-defendant. During the trial the plaintiffs intending to examine the defendant no. 6 as one of their witnesses filed her examination-in-chief. At this stage the defendant nos. 1 to 5 has raised two fold objections; neither a copy of the amended plaint nor the written statement of defendant no. 6 was made available to them and the defendant no. 6 cannot be examined by the plaintiffs as one of their witnesses. The trial Judge has passed the following order on 02.03.2017:

4. Subsequently, a formal objection was filed on 06.04.2017 by the defendant nos. 1 to 5, raising objection to examination of the defendant no. 6 as one of the plaintiffs'' witnesses. This application has been allowed by the trial Judge by the impugned order dated 12.04.2017. Aggrieved, the petitioner has approached this Court.

5. The Code of Civil Procedure does not create any substantive right in a party to the suit. It simply prescribes the procedure which has to be followed during trial of the suit. Order I CPC deals with parties to the suit and Order II CPC prescribes how a suit shall be framed. Order VI Rule 1 CPC defines pleading to mean plaint and written statement. Except in cases dealt with under Order VIII Rule 9 CPC there shall not be any other affidavit except the plaint and the written statement by any party to the suit. Order XIII Rule 1 CPC provides that before settlement of issues in the suit the parties or their pleader shall produce all the documentary evidence in original and Order XVI Rule 1 CPC mandates that on or before the date so appointed by the Court but not later than 15 days after the issues have been settled in the suit the parties shall produce in the Court a list of witnesses whom they proposed to call either to give evidence or to produce documents. Admittedly, defendant no. 6 is not a witness cited by the plaintiffs in their list of witnesses.

6. Order XVIII Rule 1 CPC lays down the procedure how hearing in the suit and examination of witnesses shall take place during trial of the suit. Rule 1 provides that the plaintiff has the right to begin unless the defendant